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ELD rule fails to fully address harassment, OOIDA says—again

The Owner-Operator Independent Drivers Assn. (OOIDA) isn’t backing down and, with a month to go before oral arguments, the small-business trucking group has filed a scathing response to the federal government’s rejection of the latest attempt to block an electronic logging device (ELD) mandate.

Pointing to the U.S. Seventh Circuit’s 2011 ruling in OOIDA’s successful appeal of a previous electronic log mandate—a rule tossed because it did not address driver harassment—OOIDA reminds the panel that it had declined to rule on other pertinent issues, observing at that time that ‘… prudence dictates that we leave for another day any questions that might arise in connection with whatever new rule the agency decides to adopt,’” the filing quotes. “Petitioners respectfully submit that it is now time to address each of the issues raised here… . This will provide needed clarity and certainty for all parties if further administrative proceedings are conducted following remand.”

In the brief, OOIDA argues the Federal Motor Carrier Safety Administration’s (FMCSA) answer to the petition to vacate the ELD Final Rule does not adequately address the five key legal points:

• The Final Rule fails to satisfy the statutory mandate requiring ELDs to be capable of recording hours of duty and changes in duty status automatically.

The issue here is automatically, a word used by Congress in its order to FMCSA to develop an ELD rule.

OOIDA’s initial filing in the petition raised the possibility that the manual entry of inaccurate changes in non-driving duty status in an ELD can mask hours of service violations just as easily as in paper log books. But FMCSA, in its argument “glibly brushes aside” that analysis as hypothetical scenarios in which “falsification may be possible."

“Even though Automatic On-Board Recording Devices (AOBRD) have been permitted for 25 years, FMCSA has virtually no current or reliable data to support any findings with respect to the effectiveness of ELDs,” OOIDA says. “FMCSA argues next that Congress could not have actually intended to require automatic recording of changes in duty status, which it describes as a ‘breathtakingly intrusive scheme.’ This is, however, a lawyer’s argument for which there is no supporting documentation in the administrative record and no serious analysis by the agency supporting counsel’s hyperbole.”

• The Final Rule fails to ensure that ELDs are not used to harass drivers.

“FMCSA takes the position that it is not required to address all instances of harassment, but only those related to HOS violations, and then, only harassment perpetrated by motor carriers,” the OOIDA filing reads. “There is not a word in the statute supporting such limitations.”

After a section to counter an FMCSA-cited precedent that gives the agency some leeway on the definition of harassment, OOIDA goes on to cite the 2011 ruling and to name non-HOS related examples of harassment that can be tied to ELD monitoring:

“Harassment may extend to pressure to drive through bad weather conditions, dangerous road conditions, or serious traffic problems,” OOIDA contends. “Shippers and receivers who are given access to real time ELD data related to their shipments can also harass. None of these potential varieties of harassment is included in the Final Rule.”

• The Final Rule provides no benefits to offset costs.

“FMCSA has not provided any analysis or statistical support directly related to the use of an ELD that shows any connection between the installation of the ELD in the Final Rule and enhanced HOS compliance and crash reduction,” OOIDA argues, part of a detailed refutation of the agency’s data and collection methods. “FMCSA answers [OOIDA’s] specific, detailed showing with nothing more than conclusory contradictions and citations … which contain the evidence Petitioners have demonstrated undercuts FMCSA’s conclusions.”

• The Final Rule violates drivers’ Fourth Amendment rights.

This section reinforces several points made in the original appeal:

The mandatory installation of ELD devices to support law enforcement activities constitutes a search.

By statute ELDs are intended to serve the ordinary needs of law enforcement. This use is not covered by the pervasively regulated industry exception to the Fourth Amendment’s warrant requirement.

The inability of ELDs to automatically record changes in duty status does not further the regulatory scheme. FMCSA’s cost-benefit analysis does not document that ELDs would provide any improvement in HOS compliance over paper log books.

The Final Rule does not serve as a constitutionally adequate substitute for a warrant.

• FMCSA has not “instituted appropriate measures” to satisfy the statutory mandate to preserve confidentiality and limit the use of ELD data by state enforcement personnel.

OOIDA characters the FMCSA arguments on this issue as “misleading,” and claims the government fails to include statutory language that would complicate its position.

“We have no quarrel when opposing counsel argues that the words of a statute mean something other than what we contend they do. But an advocate goes over the line when he or she misstates the actual words of a statute,” OODIA says. “Moreover, its representation that it will ensure that data is used only for ‘law enforcement purposes’ is a tacit admission that it intends to permit enforcement personnel to ignore the statutory limitation that such data will only be used to determine compliance with “hours of service requirements.”

Oral arguments in OOIDA v. U.S. Dept. of Transportation are scheduled for Sept. 13.